Are you ready for action?

At the recent TUC Congress, union delegates backed joint industrial action if &quot;attacks&quot; on jobs, pensions and public services go ahead “to support and co-ordinate campaigning and joint union industrial action, nationally and locally, in opposition to attacks on jobs, pensions, pay or public services&quot;.

At the recent TUC Congress, union delegates backed joint
industrial action if "attacks" on jobs, pensions and public
services go ahead “to support and co-ordinate campaigning and joint
union industrial action, nationally and locally, in opposition to
attacks on jobs, pensions, pay or public services".

The suggestion is that unions are, therefore "standing ready" to
embark on industrial action although there was no detail of what
form it could take. Dave Prentis, general secretary of the
Unison public services union, called for united action to defeat
the government's "austerity agenda"; Unite, the UK's biggest
union, said it wants a "robust campaign" to protect public
services, while the RMT has called for “civic disobedience”

Whilst employees may not get swept up by such union calls, it is
important for HR to do what they can to manage relationships with
staff and trade unions as the spending cuts begin to hit home.

Keep all parties engaged - listen to the views and ideas of
staff and share the real financial position so that they are aware
of the challenges.

Ensure that all communications channels are kept fully open at
the individual and the collective level.

Ensure managers involved in communications or meetings are well
briefed/trained and keep a consistent view/position in any
responses from the organisation to staff or unions.

Use technology to disseminate information but ensure face to
face meetings are built into the strategy.

Fears of a new winter of discontent may not materialise, not
least because secondary picketing is now illegal, but what is legal
and what can employers do about their staff taking industrial
action?

On one level, a strike (and almost every other type of
industrial action) is always unlawful, since the employees involved
will breach either the express or implied terms of their contracts
of employment by taking part. However, although the
breach of contract itself remains unlawful, the employer loses its
ability to sue the trade union and (to a limited degree) to dismiss
the striking employees, provided certain strict conditions are
fulfilled in relation to balloting and calling for the industrial
action (see previous article on balloting). The
phrase "lawful strike" or "lawful industrial action" is often used
to describe industrial action that has been organised in accordance
with these conditions, and which therefore affords the union and
employees these immunities.

There is no statutory definition of industrial action, but, as a
general guide, any concerted action which is taken in order to put
pressure on an employer is capable of being industrial
action. Case law has held that the term covers the refusal by
a group of employees to do anything (whether or not in breach of
contract) as a bargaining weapon. Like the proverbial
elephant, Tribunals are trusted to know it when they see it.

However, there are two basic types of industrial action:

a strike, which is an outright stoppage of work.

other industrial action short of a strike which can include: an
overtime ban; call-out ban; go slow; work to rule; work-in; or
sit-in.

A strike is often accompanied by picketing, which may be
organised by the trade union as part of its strategy to bring
attention to the dispute and to persuade the workforce to join in
the strike. Unlawful picketing may expose the union (and the
pickets themselves) to liability in tort (and therefore the risk of
an injunction to curtail the unlawful activities). It may sometimes
involve criminal activity.

Picketing is only lawful where all of the following conditions
have been met.

The picketing is done only by the following people near their
(last) place of work:

a worker (who is employed by the employer who is a party to the
dispute)

an ex-worker of that employer (so long as that employer was his
last employer and he was dismissed in connection with the dispute
or his dismissal is one of the reasons for the dispute); or

a trade union official who represents and is accompanying
either of the above.

The purpose of the picketing is to obtain or communicate
information or to persuade any person to work or abstain from
working.

The picketing is done peacefully; in other words, there must be
no intimidation or threatening behaviour.

There is a code of
practice on picketing, which may be taken into account by a
court or tribunal in claims and which recommends that "mass
picketing" should be avoided, as it can lead to intimidation by
sheer force of numbers.

Lawful picketing may give rise to a limited form of lawful
secondary action, for example, pickets may persuade delivery
drivers to turn away without making their delivery to the
employer.

Other than the picketing example above, “secondary action”
(often referred to as "sympathy" or "solidarity" action) is
unlawful. An example would be where employer X is in dispute
with its own workers over pay. A union official threatens A
that unless it gives in, he will ask the workers of employer Y (a
supplier of X) not to deliver any supplies to X. It is
secondary because the employment contracts being interfered with
are those between Y and its own workers and Y is not a party to the
dispute.

Legal remedies against employees for taking industrial action
are limited: notably, the court cannot order an employee to work or
even to attend the workplace. However, employers may legitimately
withhold all or part of employees' pay if they are in breach of
contract and may also dismiss some or all of them, depending on the
circumstances.

The unfair dismissal rules in this context are complex and
depend on whether the industrial action is “unofficial”,
“official”, or “protected”. In brief, employees dismissed
while taking part in unofficial industrial action (ie where it is
not authorised or endorsed by a union) cannot normally claim unfair
dismissal, even if the employer is selective about whom it
dismisses. Employees dismissed while taking part in official
industrial action can only claim unfair dismissal if there is
selective treatment (ie where the employer selectively dismisses or
re-engages staff) or if the action is protected by virtue of a
lawfully-organised union ballot. Where the industrial
action is "protected industrial action" ( ie union has complied
with the balloting and notification requirements) the rules are
more complicated and there are protected periods of time during
which any dismissal would be unfair.

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The information on this website is of general interest about current legal issues and is not intended to apply to specific circumstances. It should not, therefore, be regarded as constituting legal advice.